Legislature(1997 - 1998)
02/13/1997 01:05 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
February 13, 1997
1:05 p.m.
MEMBERS PRESENT
Representative Bill Hudson, Co-Chairman
Representative Scott Ogan, Co-Chairman
Representative Beverly Masek, Vice Chair
Representative Fred Dyson
Representative Joe Green
Representative William K. ("Bill") Williams
Representative Irene Nicholia
Representative Reggie Joule
MEMBERS ABSENT
Representative Ramona Barnes
COMMITTEE CALENDAR
* HOUSE BILL NO. 28
"An Act repealing the Alaska Coastal Management Program and the
Alaska Coastal Policy Council, and making conforming amendments
because of those repeals."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 28
SHORT TITLE: REPEAL COASTAL ZONE MGMT PROGRAM
SPONSOR(S): REPRESENTATIVE(S) THERRIAULT, Kelly
JRN-DATE JRN-PG ACTION
01/13/97 34 (H) PREFILE RELEASED 1/3/97
01/13/97 35 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 35 (H) RESOURCES, FINANCE
02/13/97 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
REPRESENTATIVE GENE THERRIAULT
Alaska State Legislature
Capitol Building, Room 511
Juneau, Alaska 99801
Telephone: (907) 465-4797
POSITION STATEMENT: Provided sponsor statement for HB 28.
DIANE MAYER, Director
Division of Governmental Coordination
Office of Management and Budget
Office of the Governor
P.O. Box 110030
Juneau, Alaska 99811-0030
Telephone: (907) 465-3563
POSITION STATEMENT: Provided Administration's position in
opposition to HB 28 and answered questions.
MARTY RUTHERFORD, Deputy Commissioner
Department of Natural Resources
3601 C Street, Suite 1210
Anchorage, Alaska 99503-5921
Telephone: (907) 269-8431
POSITION STATEMENT: Testified on HB 28.
HARRY NOAH
1120 East Huffman, Number 601
Anchorage, Alaska 99515
Telephone: (907) 265-3100
POSITION STATEMENT: Testified on HB 28.
SCOTT NOVAK
P.O. Box 1703
Cordova, Alaska 99574
Telephone: (907) 424-3800
POSITION STATEMENT: Testified on HB 28.
ACTION NARRATIVE
TAPE 97-11, SIDE A
Number 0001
CO-CHAIRMAN SCOTT OGAN called the House Resources Standing
Committee meeting to order at 1:05 p.m. Members present at the
call to order were Representatives Ogan, Hudson, Masek, Dyson,
Williams, Nicholia and Joule. Representative Green joined the
meeting at 1:06 p.m. Co-Chairman Ogan noted that Representative
Barnes was ill that day.
HB 28 - REPEAL COASTAL ZONE MGMT PROGRAM
Number 0075
CO-CHAIRMAN OGAN advised that the purpose of the meeting was to
hear House Bill No. 28, "An Act repealing the Alaska Coastal
Management Program and the Alaska Coastal Policy Council, and
making conforming amendments because of those repeals." Noting the
large number of people present, Co-Chairman Ogan said he had no
intention of moving the bill that day. He advised there would be
ample time for public testimony later. However, that day's
testimony was restricted to the sponsor and department
representatives, with the meeting intended as an educational tool.
Number 0148
REPRESENTATIVE GENE THERRIAULT, sponsor of HB 28, agreed the
magnitude of what he proposed deserved thoughtful consideration.
He was trying to educate himself as to what was being done, why,
and at what cost, to try to make a reasonable decision on how to
proceed. He believed the committee should be looking at how to
frame discussion concerning the bill.
REPRESENTATIVE THERRIAULT explained his reasons for introducing HB
28. He had taken over the Department of National Resources (DNR)
budget subcommittee four years earlier. Throughout deliberations
and trying to make cuts necessary to meet the cap he had been given
as budget subcommittee chair, Representative Therriault became
frustrated by feedback from the DNR indicating they were almost to
the point of being paralyzed. "They would not be able to process
the permits, do the leases, things of that nature that we have, by
statute, demanded that the department do," he said, noting that the
department was receiving roughly $44-45 million a year in general
funds. "And what that left me wondering is: Well, what are we
getting for our $45 million, then? Or what are we doing that is
consuming the $45 million that we're appropriating on a yearly
basis?"
REPRESENTATIVE THERRIAULT said he began asking the heads of the
divisions and the commissioner for suggestions to increase the
DNR's efficiency and make the overall mandated process operate more
smoothly. "And that lead to the introduction of one of the pieces
of legislation which I actually hope to get through the process
this year, which is a Title 38 cleanup," he stated. He had worked
with the DNR to identify hoops they had to jump through that might
have once made sense but no longer did, especially under tight
fiscal constraints, he said.
REPRESENTATIVE THERRIAULT said that bill had been reintroduced this
year. He suggested it had failed the previous session because it
was "fairly confusing and we just ran out of time towards the end
of the session." He said that legislation was now broken into two
pieces. He had asked Representative Pete Kelly to be the lead
person on one. Representative Therriault explained, "What we did
is we pulled the mining sections out, introduced them separately.
The House actually took action on that bill, and that bill has now
been passed over to the Senate. And the other bill will be coming
along through the process sometime soon."
Number 0456
REPRESENTATIVE THERRIAULT explained, "Based on congressional action
in 1990, the reauthorization of the federal program, a memo was
written to the State of Alaska that detailed that if we wanted to
continue to participate in the Coastal Zone Management program,
there were certain things ... about our program that the federal
government was going to mandate that we fix. They were putting
stipulations on our program that if we wanted to continue it, there
were certain things that they wanted us to do. And when I got a
copy of that memo and read through it, what immediately sprang to
my mind was: `We're barely able to afford the program that we
currently have; how can we possibly add things to it? Where's the
money going to come for that?' And so that ... really started to
focus my attention on the Coastal Zone Management program, where it
came from and what it was intended to do."
Number 0533
REPRESENTATIVE THERRIAULT indicated after HB 28 was introduced, he
had been asked who put him up to it or which resource industry had
requested it. "And none of them did, and nobody put me up to it,"
he stated. "I actually now am in the position where I am
approaching different industries and asking for their input on the
bill." He emphasized that his deliberations and interaction with
the budget had led him to the point of challenging the program.
REPRESENTATIVE THERRIAULT cautioned, "One of the things that I
think we need to be mindful of is the process that we have set up
over the years. The Coastal Zone Management program came into
being in the mid-'70s and was actually adopted and put onto the
state statutes in the late '70s. So that was basically 20 years
ago. Since that time, though, we've had a number of state actions
and federal actions that I think diminish the need for the
continuation of the program. And in dealing with my staff back in
November and December, we went back and forth on whether we should
propose a streamlining, whether we should propose changes on the
periphery of the program. And I finally came down to the
conclusion that ... my starting point would be to challenge the
mere existence of the program."
REPRESENTATIVE THERRIAULT said if nothing else, the program
probably should have been put into statute with a mandatory sunset
review. That way, the legislature would be forced to look at the
program and its expense periodically, to determine whether other
state and federal laws had grown up to supplant or surpass it.
Representative Therriault noted the federal requirements were the
Clean Air Act, the Clean Water Act and the Corps of Engineers 404
determinations on wetland impacts that are part of the Clean Water
Act. Although those were perhaps in the discussion stages in the
late 1970s, they were now on the books. Now, much of Alaska's
permitting process had to live within the confines of those federal
and state acts.
Number 0674
REPRESENTATIVE THERRIAULT referred to a hand-drawn flow chart
entitled, "Hypothetical Permit Review Process." Discussing the
bottom of the chart, he said hypothetically a person might need
three permits and therefore have to go to the Environmental
Protection Agency (EPA), the Department of Environmental
Conservation (DEC) and the Department of Natural Resources (DNR).
"And just the different process that that would go through as far
as best-interest finding for the issuance of a permit, possible
hearings, the draft permit, the public's right to ... participate
in that process, that is the state agency process," Representative
Therriault stated.
REPRESENTATIVE THERRIAULT referred to the top of the flow chart and
indicated it was not meant to exactly duplicate the length of each
process. He said, "But up on top what we've got is ... the Coastal
Zone Management program. And what my suspicions are is that a lot
of this is an unnecessary duplication ... that costs us money and
may stretch the process out much longer than we intended it to."
Number 0802
REPRESENTATIVE THERRIAULT referred to the ninth principle listed in
a document entitled, "The Operating Principles of the ACMP as
Reaffirmed Through the Assessment." He stated, "It says the ACMP
provides for expanded authority of all state agencies in coastal
districts, and with the expanded authority comes expanded
responsibility. One of the main problems that I have with ... that
premise is that we are the policy-setting body for the state
agencies. We should be making a determination when to expand an
agency's authority, ... not through some other voluntary program."
REPRESENTATIVE THERRIAULT referred again to the flow chart and said
in his example, although the permittee applied to the DNR, the EPA
and the DEC for permits, through this program they also pulled in
the Department of Fish and Game (ADF&G). He said the legislature
had determined to give to the ADF&G certain powers in the
permitting process. However, through the ACMP, ADF&G's powers were
greatly enhanced. "And I think that's a determination that we, as
the legislature, should make, and not just allow Fish and Game to
exercise through ... involvement through this voluntary federal
program," Representative Therriault said.
REPRESENTATIVE THERRIAULT suggested it was like a box. The ACMP
did two things. First, they had a review process or permitting
process, as outlined on the top of the flow chart. Second, they
had a coordinating function. He said, "And I'm not so sure that
the coordinating function doesn't warrant retention. And I guess
my question is: Through what means should we retain that
coordinating function? And my suspicion is that part of the need
for the coordination function stems from the ... upper part of this
flow chart, that if we didn't have the upper part of the flow
chart, maybe the necessity of the second part being the
coordinating function wouldn't be necessary."
Number 1002
REPRESENTATIVE THERRIAULT noted he was from the Interior, where no
coastal zone management requirement existed. He suggested he was
the perfect person to question, on a purely analytical basis, how
the money was being spent and whether the process was worth it.
His reason for questioning it was purely the budgetary constraints,
he said.
REPRESENTATIVE THERRIAULT referred to the Fort Knox mine, which had
required many permits. That process was now being held up as an
example of perfect permitting coordination. It had been
accomplished without involvement from the Division of Governmental
Coordination (DGC) or the coastal zone management structure. He
said, "So I think what we need to ask is, again: How much are we
expending? Have other laws grown up around this process to negate
its necessity? ... Can we now move to, perhaps, a lead agency
process where the same sort of coordination ... can be gathered for
the permitting process?"
Number 1065
REPRESENTATIVE THERRIAULT referred to a quarterly report from the
Department of Law that discussed litigation involving that
department and the DNR. In paging through it, he was struck by the
number of cases involving determinations made by the Coastal Policy
Council through the ACMP process. One case was the Native village
of Koyuk versus the National Oceanographic and Atmospheric
Administration (NOAA). A man had applied for a permit to have a
trapping cabin in a coastal area. A determination granting the
permit was appealed by the Coastal Policy Council; the case was now
in court. Representative Therriault believed the Coastal Zone
Management program was being used by people wanting to restrict
access to the hunting and fishing opportunities out there. "And I
don't think that's what the program was designed to do at all," he
said. "The program was designed primarily to allow the coastal
areas to do some planning on what was to take place ... in their
area of the state."
REPRESENTATIVE THERRIAULT believed the program had evolved into a
kind of microscope, with every proposed project undergoing intense
scrutiny above and beyond what state agencies had to do to permit
the project; the agencies or district councils would then give a
thumbs-up or a thumbs-down. "I really think that that's ... more
power than the original program proposed for them to take on," he
stated.
Number 1188
REPRESENTATIVE THERRIAULT referred again to the flow chart and
discussed the manner in which decisions were elevated to
increasingly higher administrative levels. He cited an instance
where three commissioners sat through a hearing one afternoon to
determine whether a property owner along the Mendenhall River could
place fill in his back yard. Representative Therriault believed
this was an example where the process had perhaps spun out of
control.
Number 1253
REPRESENTATIVE THERRIAULT cited another problem. Many district
councils, when putting together their plans, adopted all the
regulations of a particular department. He explained, "So putting
together a plan for the northwest Arctic coastal area, they may
have adopted all of DEC's regulations. Then when somebody proposes
a project, DEC starts on their permitting process. And of course,
along their permitting process, DEC is following all of their
agency regulations. In ... trying to make a consistency
determination, the local district is also interpreting their plan,
which is based on DEC's regulations, but they then may end up
giving a thumbs-down to the project; DEC, going through their
permitting process, may end up giving a thumbs-up to the process.
Both of these, these dual tracks, were supposedly based on the same
set of regulations, yet the outcomes of the two tracks were ... one
was a `yes' and one was a `no.'"
REPRESENTATIVE THERRIAULT indicated division directors and the
commissioner might then have to determine whose interpretation of
the state regulations was correct. He believed this situation was
fraught with potential problems.
Number 1328
REPRESENTATIVE THERRIAULT acknowledged that his staff had received
individual fiscal notes from the departments. However, there had
been a determination that the Administration wanted to present one
combined package. Representative Therriault read from the fiscal
note from the Office of the Governor, Office of Management and
Budget, Division of Governmental Coordination, dated 2/11/97. The
analysis read, in part: "... There would be no savings to the
general fund for other state agencies, however, because they use
the general fund match to support ongoing departmental functions."
REPRESENTATIVE THERRIAULT provided his interpretation: "What I
think the Administration is trying to get to is that there really
would be no general fund savings if we did away with this program.
You know, I'm willing to discuss that and have a healthy debate on
that, but I think what they perhaps are setting aside is that we do
have state agencies and divisions that are saying that the budgets
are getting tight so that they can't do those things that they're
mandated by statutes. So if ... nothing else, perhaps what we
would do is allow the different divisions and agencies to
reallocate the money that is currently being spent on this program
so that they could move forward (indisc.) with permits. They could
do, perhaps, in-house coordination through a lead agency kind of
mechanism where, perhaps, DNR is the one that pulls together the
different permitting processes and the different tracks to make
sure that everything moves together, moves along on the same line."
REPRESENTATIVE THERRIAULT concluded, "So I'm not, by introducing
the bill, promising big general fund savings. I think we are
putting in roughly $1.3 million to the general fund to match. The
agencies are spending additional money within their budget, which
is counted as a general fund match for the federal funds. So there
is an expenditure or utilization of general fund dollars. And if
we can't save every one of those general fund dollars, perhaps we
could better utilize the general fund dollars."
Number 1444
CO-CHAIRMAN BILL HUDSON referred to the fiscal notes. He asked
Representative Therriault if they were to consider only the single
fiscal note from the Office of Management and Budget.
REPRESENTATIVE THERRIAULT responded, "It was my understanding that,
in coming in with the fiscal note from, basically, the Office of
Management and Budget and DGC, Division of Governmental
Coordination, they wanted to try and pull all those things
together."
CO-CHAIRMAN HUDSON suggested if the other fiscal notes were added
up, they should equal the DGC's figure.
REPRESENTATIVE THERRIAULT replied, "I think that's the way it's
supposed to work. I'm not sure."
Number 1496
REPRESENTATIVE JOE GREEN suggested the fiscal notes were revenue-
neutral with or without the ACMP. If the state spent the money, it
got the federal receipts. If it did not spend it, it got no
receipts. "So either way, the fiscal result is zero," he
concluded.
REPRESENTATIVE THERRIAULT replied, "I think the idea that's being
advanced there is that this function needs to take place in some
sort. Certainly the general fund dollars match the federal dollars
that ... help to offset the cost of the agencies participating in
this process. And I guess that's when I said if you look at it,
the whole program is sort of a box that has two halves. You have
one half that sets up the process. The second half helps to
coordinate getting through that process. So I'm not so sure that
without the process you would need to expend all the monies that
are being expended to coordinate getting through the process."
Number 1550
REPRESENTATIVE GREEN responded, "But if you say that the process
needs to continue, but not necessarily in this form, somewhere
we've got to pay for that. And I don't see that in the fiscal
notes."
REPRESENTATIVE THERRIAULT explained, "I believe there will be a
need for some kind of permit coordination. But right now, we're
not only doing the permit coordination, what's going on in the
agencies, we're also trying to coordinate the agencies with the
ACMP consistency reviews, consistency determinations, the whole
separate policy or public-input process that goes on ... up in that
level that is, in my mind, or my suspicion is, duplicative of
what's going on in the agency process, because certainly within the
agencies you have state's-best-interest finding, public's -- public
input, all along the state agency permitting process."
Number 1602
REPRESENTATIVE GREEN commented, "When this office of Governmental
Coordination was in its infancy, I was in a different realm. And
that agency actually helped streamline the process, actually, in
some cases, acting as a proponent for the activity, and a bird dog
or a watch dog or snapping at the heels of other agencies to get
their responses in, because in the period of the '80s, there was a
kind of a reluctance. The best way to slow a project down was just
to not to respond, and the agencies took ever-increasing amounts of
time to respond. And so finally, when ... this agency came through
as a result of this, there was an internal working that kept
bugging, as it were, the agencies to have much more timely response
to applications that were sent in. Now, if that function is gone,
are we going to take a giant step backwards ... in permitting
process to get development going? And it seems to me that this
legislature is, and has been, one that fosters that kind of
development."
Number 1665
REPRESENTATIVE THERRIAULT said that was the reason why he mentioned
the Fort Knox mine, a project in Interior Alaska that did not
impact or cross over into the coastal zone management. Its
permitting process had advanced along. Representative Therriault
stated, "There's obviously something that has grown up ... that in
fact helped that project along. ... I admit that perhaps we need to
consider the half of the overall box that is that bird dog, but I'm
not so sure that it needs to be retained in its current structure.
And I'm wondering how much of the demand or the need for that bird
dog might be ... caused by the second half of the box, ... this
secondary public review and process, basically."
Number 1717
CO-CHAIRMAN HUDSON said he understood other states, including
California, had a single coastal zone coordinating concept, where
there was representation of technology and other aspects of each
agency in the central committee. He asked whether Representative
Therriault had looked at that.
REPRESENTATIVE THERRIAULT indicated he had not had time to do so.
He had figured much of that information would be brought to the
table through the ongoing discussion on this legislation.
Number 1752
CO-CHAIRMAN OGAN asked Representative Therriault to prepare a flow
chart showing more explicitly what was redundant, i.e., what other
agencies were already doing.
REPRESENTATIVE THERRIAULT apologized for the hasty preparation of
the present flow chart. He stated, "I will work, and will pledge
also to work with the Division of Governmental Coordination, to
make sure that the information that's presented is factual. ... And
we'll try and do it in such a form that ... by looking at the
horizontal representation, you can sort of get an idea of the
length of the time line too, by putting in how many days do they
have to do something, but in that process, then, when they get to
a certain point that, can they freeze the process while they're
soliciting more input."
Number 1831
CO-CHAIRMAN OGAN invited Representative Therriault to join
committee members at the table. He then asked Diane Mayer to come
forward to testify.
Number 1860
DIANE MAYER, Director, Division of Governmental Coordination (DGC),
Office of Management and Budget, Office of the Governor, read from
a prepared statement: "Administration of Alaska's coastal program
is the primary responsibility of the division. I am here to voice
the Knowles Administration's opposition to HB 28 - An Act repealing
the Coastal Management Program. Though opposed to repealing the
program, I do consider the proposal to do so an opportunity to
highlight some of the benefits of the program and to answer some
questions about it.
"The Alaska coastal program benefits all Alaskans who live, work
[and] recreate in the state's coastal areas. Its most important
feature is its provision for coastal communities to set local
standards that might guide development in their areas. Other
benefits of the program include three million dollars annually in
federal funding to support coastal program development and
implementation; the Alaska coastal program gives the state and
local communities a strong role in shaping proposed federal
activities; coastal program regulations provide one-stop permitting
services to developers, including a coordinated state review of
their proposed projects.
"If the coastal program is repealed, the state would lose the
federal funding, would lose the state and local influence over
federal actions, [and] would lose the coordinated review of project
permits. Though project reviews may be addressed through new
legislation, the state forfeits the federal funding and loses the
experienced staff needed to manage the recreated system.
"Alaska's coastal program takes advantage of the federal Coastal
Zone Management Act. Congress believes state[s] and local
communities are best positioned to responsibly direct development
in their coastal areas. In fact, just last year, Congress passed
the bill reauthorizing the federal Coastal Zone Management program
by a unanimous vote in both the House and the Senate. Every
coastal state now has a state coastal program and is benefiting
from the state's rights and ... federal funding granted by the
federal Coastal Zone Management Act. Given the extensive ownership
and regulatory authority the federal government has in Alaska,
eliminating the coastal program would further the federal agenda in
these coastal areas.
Number 1990
"The Alaska legislature has also reviewed the coastal program
several times since its inception. Most recently, in 1994, the
Legislative Budget and Audit Committee requested its legislative
division to conduct a full review of the administration and the
costs of the Alaska coastal program. The auditor's report finds
that the Alaska coastal program offers unique benefits not provided
by other federal programs; that DGC appears to be the most
appropriate agency for administering the state's coastal program;
and that DGC has been successful in the role of facilitator and
consensus builder. I recently distributed copies of this report
for each of the members of the committee to be sure that you had
not only testimony from those involved with the day-to-day
operations, but could also benefit by the rigorous, six-month
review conducted by your own audit division.
"From recent conversations I've had about Alaska's coastal program,
it is clear that people have important questions, and I hope to
provide immediate answers to many of them today.
"Some say that the project review system stops development and is
plagued by continuous appeals at higher levels. A quick look at
our project statistics demonstrates the effectiveness of the
coastal project review. I have charts. [An assistant held up
large charts.] As illustrated by the first chart, over the last
five years, 99.4 percent of all projects needing multiple permits
were found consistent with the coastal program. This record is
based on our review of approximately 400 projects each year and
demonstrates that DGC is working across federal, state and local
lines to solve development problems, not make them. Of these
projects, the record shows, on chart 2, that 98.3 percent are
permitted by regional staff with no subsequent review needed by
higher agency officials. Project solutions and permit decisions
are being made where they should be, at the ground level.
"Even though these numbers are impressive, it is true that project
appeals have sometimes resulted in the same issue being
reconsidered ... several times by agency decision-makers. This
repetition, though rare, as the chart shows, has been frustrating
to everyone when it occurs. There is already a Cabinet-level
effort to streamline the appeal process so that there is only one
formal appeal per project. Furthermore, other Cabinet-level-
initiated efforts are underway to streamline resource development
activities such as drafting general permits for routine projects,
expanding the use of joint public notices, consolidating permit
application forms to reduce unnecessary paperwork, and simplifying
the project permitting procedures. DGC staff is leading most of
these streamlining efforts.
Number 2163
"Another assertion is that federal resource laws diminish the need
for the coastal program. While other state and federal laws
provide for specific environmental protection, Alaska's coastal
program uniquely addresses ... local interests in development
activities. In addition, it provides federal funding to support
coastal programs, it strengthens the voice of state and local
communities in federal activities, and it provides efficient
coordinated project permitting services.
"There is the perception that the coastal program is duplicative of
other state authorities. Alaska intentionally developed its
coastal program by using existing state authorities and local
approvals, rather than opting for creating a separate coastal
permit. Instead of there being a new agency that adjudicates a
permit, like the California coastal permit issued by their Coastal
Commission, under Alaska's system the resource agencies and the
affected local districts work together to ensure that the existing
state and federal permits satisfy established coastal standards.
Rather than duplicating existing processes, the coastal program
offers one-stop shopping that brings all the participants to the
table to resolve disagreements. With resource agency permits and
coastal program reviews occurring on the same schedule, the process
benefits all parties by saving time and money.
"Another concern I have heard is that the coastal program allows
state agencies to require stipulations on permitted activities
beyond the agency's statutory authority. An agency can only
propose stipulations based on the state coastal standards and local
programs. Except for their own permits, they cannot independently
require these stipulations. State statute does provide permitting
agencies full authority, indeed the responsibility, to administer
their permit approvals consistent with state and local coastal
standards. Existing local, state and federal approvals are the
legal tools for implementing project agreements.
Number 2274
"A common concern [is] that the coastal program standards are vague
and open to different interpretations by state agencies and coastal
districts. This concern is shared by resource agencies, by the
Coastal Policy Council and coastal districts. The Coastal Policy
Council has directed DGC to work with the program participants to
address not only the improvement of policy statements, but
simplification of the procedures to implement the needed program
revisions. Fixing this problem is our top priority.
"Another question about the coastal program is, `Does it allow the
unorganized borough to create quasi-governmental entities that
participate in coastal program and development decisions?' Yes,
this is true. These districts are called Coastal Resource Service
Areas. Every community wants a say in development that affects the
area it relies on for their economic opportunity and their quality
of life. Alaskans living in the unorganized borough are no
different. These communities deserve a voice in activities that
affect their areas. The coastal program gives them an opportunity
to fully participate. It is local participation that often builds
understanding and support for projects and reduces legal challenges
at the end of the reviews.
"Taking a longer view, coastal resource service areas have proven
to be a stepping stone to borough formation. Of the seven CRSAs
originally formed under coastal management, three have organized
into boroughs and others are now seriously considering taking the
next step.
"For developers, elimination of the ... coastal management program
will mean they will be on their own to navigate the maze of federal
and state permitting requirements. One-stop shopping will
disappear. There will not be a standard process resolving
disagreements between agencies and no way to make sure that local
communities are fully informed about projects in their area. If a
new system is developed, the state will have lost its federal
funding and the experienced staff needed to get the new system up
and running.
Number 2378
"Wholesale repeal of Alaska's coastal program forfeits our position
of power over federal decisions that affect our coast; it turns
back federal dollars that largely benefit local communities in
their attempt to responsibly direct coastal development in their
areas; and it unravels Alaska's project review system that provides
one-stop services and development solutions for individuals and
companies proposing coastal projects. The Knowles Administration
is opposed to HB 28 - the repeal of this important program.
"Mr. Chairman, since it is a networked program with significant
initiatives underway, we thought it would be beneficial for the
committee to have access to Marty Rutherford, Deputy Commissioner
of DNR, and Craig Tillery, the Assistant AG. Ms. Rutherford is a
Coastal Policy Council member [and] has an extensive background in
community issues from her many years with Community and Regional
Affairs. And Mr. Tillery is our legal guide in the current
streamlining effort. I've been told that they're on-line with the
Anchorage LIO. ... We are all available to help answer any
questions you might have."
CO-CHAIRMAN OGAN thanked Ms. Mayer and asked if there were
questions from the committee.
Number 2428
CO-CHAIRMAN HUDSON commended Ms. Mayer. He referred to her
indication that over 98 percent of issues and appeals were settled
at the regional level. He asked, "What type of delegated
responsibility have you given to the regional level?" He further
asked, "Even though they may ... settle it all at the regional
level, do they still have to come to you or to the council for
final approval?"
MS. MAYER replied no. [Beginning of explanation cut off by tape
change.]
TAPE 97-11, SIDE B
Number 0006
MS. MAYER continued, "And unless there's disagreement between the
parties, which includes the local community and the developer, ...
their solutions are captured in the finding. The regional-level
staff sign the decision and the project is out the door."
CO-CHAIRMAN HUDSON asked, "Diane, where in the statutes do we
derive the authority for the unorganized borough to -- is that in
the coastal zone policy act itself?"
MS. MAYER replied, "Right. ... That would be at [AS] 46.40
something." She affirmed that was in the Alaska Coastal Management
Act.
CO-CHAIRMAN HUDSON responded, "And so, then, given the fact that
the unorganized borough is truly the province of the legislature,
as opposed to the Administration, I'm assuming that the act
delegates that authority to the Administration ... for the review
and the participation in that element?"
MS. MAYER said that was true. The act was actually very thorough
on what it takes to form a CRSA, with probably two pages of law
just on the subject of coastal resource service areas, she stated.
Number 0073
CO-CHAIRMAN HUDSON said concern had been expressed to him about how
a coastal policy act could extend 200 miles up a river, for
instance. He asked Ms. Mayer, "Do you believe that it has gone
well beyond what it was originally intended?"
MS. MAYER said the coastal zone boundary was debated during the
formation of the program, in the late '70s and early '80s, under
the Reagan Administration, with much concern and debate at the
Washington, D.C., level about the criteria and methodology used to
establish that boundary. It was handled through a National
Environmental Policy Act (NEPA) document, with a rigorous
evaluation of that criteria. "It is a biophysical boundary," Ms.
Mayer explained. "And I think if there's ... any policy questions,
that the technical basis for that boundary, as a biophysical
boundary, is very sound. The policy question, I guess, ... was:
Would we want to evaluate it against some new technical basis?"
Number 0128
CO-CHAIRMAN HUDSON asked if there were maps showing where it
applied.
MS. MAYER referred to a map of Alaska held up by an assistant and
said, "This is the biophysical boundary that was developed and
debated and finally approved. Coastal districts, when they do
their planning, do have the ability to modify the boundary if they
choose different criteria. So it's not necessarily frozen, but
that option is passed on to the local ...."
Number 0172
CO-CHAIRMAN OGAN noted that Harry Noah, former Commissioner of the
Department of Natural Resources, and Scott Novak, former public Co-
Chair of the Coastal Policy Council, would testify. He emphasized
there was no intention of moving HB 28 that day and that he foresaw
several meetings on it. He acknowledged that Marty Rutherford and
Craig Tillery were also available for questions.
Number 0220
REPRESENTATIVE THERRIAULT referred to a letter containing
stipulations from the EPA. He expressed concern that when there
were federal funds to operate a program, there was no promise those
funds would continue. This had been a voluntary program that came
with federal funds to operate it. Now, there were stipulations
requiring additional things. If those were not met, they chanced
losing those federal dollars. Representative Therriault asked,
"Then what would we do? How would we operate the program? Would
it take additional general fund dollars to step in?" He asked Ms.
Mayer, "And just from your understanding of what all is contained
... in the letter with the stipulations, are we going to be able to
meet all the demands?"
Number 0272
MS. MAYER replied, "Representative Therriault, I applaud your eye
on ... this one. The code for it is 6217. It's a section of
federal law. So they call it the `6217 provisions.' When the
coastal program was developed, ... Congress made it a voluntary
program, and they enticed states to participate by giving funding
if you did create a coastal program, as Alaska did, and then this
federal consistency, where federal agencies would have to come and
work with you before they could take actions in the coastal zone,
both direct actions they might do, like lease sales, or permitting
actions, like EPA discharge permits."
MS. MAYER said it had been reauthorized several times in
increments. "And when they got to the 1990 reauthorizations, I
wasn't around," she said. "So I found out about it later, and I
had a reaction similar to yours, which is why I enjoy the question.
They put in a section that mandated, for the first time in the
program, that ... coastal programs address nonpoint source
pollution problems. `Nonpoint' means doesn't come out of a spigot;
you can't turn it off. ... So it's general runoff from urban areas
and roads, storm water runoff, hillside, from construction,
harbors. There's a whole array of sources of nonpoint runoff, and
it is a very serious problem.
"For some reason, Congress picked the coastal program as the place
to insert the requirement that states had to do a better job
containing nonpoint. And prior to that, in the Clean Water Act,
all the water quality requirements are all under Section 319 of the
Clean Water Act, which DEC manages for the state. So you have a
program essentially being run by DEC for nonpoint issues, and
here's this requirement that says -- essentially the law says you
have to do it jointly ... with your DEC counterpart. And so it was
the first time that they really mandated. There were 55 management
measures. They said you had to meet them. There was some initial
funding to work on the problem. You had so much time to write back
and say how you were going to meet them. And if you met them, then
that was great. And if you couldn't meet these 55 management
measures, you would negotiate with the EPA, and then, after some
period of time where they really decided you weren't serious about
rising to this challenge, they would start deducting federal funds
from your program. A complete and total anomaly to, you know, 20
years of coastal management.
"... We did get the money. We hired an excellent employee who took
the tack on these 55 measures to go out into the agencies, as DGC
does, and identify where there were existing state resources
addressing nonpoint. There's resources within DOT roads, there's
resources within DOT harbors, there's resources, obviously, within
DEC, dam safety in DNR, there's all kinds of places. Our Forest
Practices Act covers a lot of the nonpoint issues there. And we
essentially packaged up ... and really networked the existing
resources we had addressing this problem and gave it back to EPA.
And in the first round of dialogue, of the 55 management measures,
they came back and there were ten they wanted us to do more than we
had done. And the letter you're referring to discusses how we did
on those ten. So I thought we were doing pretty good, since
nothing new was created at this point and we were still satisfying
it."
Number 0453
MS. MAYER continued, "The other thing that happened with the money
is we did take the approach to really try to educate about
nonpoint, rather than jump into a regulatory mode. And we had
small grant programs going for communities. We gave some money to
state agencies and did create a series of informational brochures,
tools, a variety of things. I actually wish I had the stack here.
... For the Y-K area, we gave them $10,000. They did a landfill
siting and operations manual, because landfills were a source of
nonpoint pollution in that area. In Wrangell, ... we had a grant
for them to install some storm water controls in a sensitive area,
a parking lot next to a salmon stream. That was a concern locally
about the effect. In Haines, we gave them some funds to replace
culverts and stabilize banks and fish streams.
"And ... there's a whole series of things. We did a brochure for
harbors, which was a kind of a centerpiece of the whole thing, ...
to pass out at the harbors that really instructed boaters of small
things you could do when you're boating to keep there from being
nonpoint pollution around harbors. So ... the first vein was
network our existing resources, give it back to EPA. The second
approach was do some educational things to address the problem
beyond what was existing. And the third thing we're doing is this
whole issue; it's such an anomaly in the program that nationally,
coastal states are basically fairly irate. And there is an
organization called the Coastal States Organization, which has been
working on what to do to correct this problem, the problem of the
threat of losing this funding if you don't take on operations to
meet these management measures that could potentially ... be very
costly to the state. I mean, it truly would become the first
unfunded mandate in the program.
"And I did volunteer to be on a nominating committee that was put
out -- put out the election ballot for officers and whatever, and
we did do amendments to the bylaws. And one of the amendments was
to create a subcommittee specifically addressing the ... water
quality issues, and of course the first target is working with
Congress to straighten out this problem. So we are right now --
the letter identified ten points. We have gotten internal
agreement on a response to EPA on all ten. We are not interested
in -- or able -- we don't have the funding to take on new
operations, but we feel like we have upgraded our responses in
those areas. And in the next meeting, I'm hoping to just get
resolution that yes, Alaska's response has satisfied the program."
Number 0584
REPRESENTATIVE GREEN asked, "If you are sitting as a kind of a
gathering agency for determining whether certain requirements are
met before an activity takes place ..., what happens when a federal
requirement says `go left' and a state requirement says `go right'?
Where does your division intervene? And that has happened, as I
understand it."
MS. MAYER replied, "If the federal requirement is one that directly
relates to an agency conducting a development activity, like a
lease sale by `MMS,' where they're taking a direct action, they're
not -- there's no applicant, there's no party, they're taking the
direction. Their requirement is that they have to be as consistent
as they can with our coastal program. But if there is a conflict
with their mandate, they have to proceed. So essentially the
program sets up the dialogue, the state ... and the local players
bring the terms, and you really are trying to shape development.
You don't trump them. If the activity is one where an applicant is
trying to get a federal permit, we do need to get through the whole
process. Basically, if the state, through our process, just thinks
`this does not cut it,' if it's a `no,' that `no' will stand."
Number 0671
REPRESENTATIVE GREEN responded, "I was thinking kind of the other
way around. If you were a smaller activity, you didn't have a
battery of experts or a massive legal talent to go to, and they
were to come to you, and I'm thinking now more of a state permit
where your division might say, `Well, that seems to do it,' but you
have a ... federal restriction or requirement that's not in line
with the state restriction or requirement. If they were to come to
you, would you, because of the conflict, then, stop them? Would
you say, `Well, we'll go with A or B,' or -- what I'm wondering is
what sort of reliance can an applicant have ... with an approval
through your division?"
MS. MAYER asked who would have the conflict with the federal
requirement.
REPRESENTATIVE GREEN explained, "Well, the applicant is coming and
wanting to do something in the coastal zone area. And ... he comes
to the various state agencies, and there may be federal overlying
requirements that may not be in sync with the requirements that are
being professed by certain state agencies. And they may come to
you and ask, `Which way should we go here?'"
Number 0729
MS. MAYER asked whether Representative Green was talking about an
instance where a federal agency, through its permitting authority,
was about to say `no,' whereas the state was going to say `yes.'
REPRESENTATIVE GREEN said, "It's more in line, and not necessarily
with a ... federal agency saying `no,' but just having a federal
requirement. There's a printed requirement that you either do or
don't do something."
MS. MAYER asked, "Built into our program?" She said she could not
think of a case demonstrating that situation. "And it may be that
I'm just misunderstanding the regulatory vision you have, or I'm
not aware of federal requirements ... that don't let us implement
our programs," she said.
Number 0768
REPRESENTATIVE GREEN said in the past, there had been U.S. Army
Corps of Engineers requirements at odds with federal and state
requirements. Issues had been brought up that impacted the
program. He inquired whether Ms. Mayer's division would take a
step to try to resolve those kinds of issues. He asked, "Would you
ever be so proponent that you would say, `Go ahead'? Or would you
say, `No, not until we can get resolve'? In some cases, you don't
get resolve."
Number 0796
MS. MAYER replied, "Examples do help, and if we had a very
specific, it would help a lot. But generally, just regarding Corps
permitting and Alaska's coastal program, I would just cite a couple
examples of how coastal management has interfaced very nicely in
directing development in wetland areas. Both the City and Borough
of Juneau, as well as the Municipality of Anchorage through their
coastal program, did do wetlands planning, which brought together
the federal players, the state players, the local players, to
really assess the values of the various wetlands in these areas.
And they agreed upon which areas were wetlands that required
permits, but that were of a low enough value that in one decision,
the Corps would let go of its regulatory authority and just pass it
on to the local government, for the low-value wetlands.
"Another example in coastal management really facilitating wetland
issues in this state: Just recently, the Corps of Engineers
reauthorized, I think it was, 34 permits they issue nationwide.
They say nationwide if your wetland is smaller than this, you don't
have to get a permit. Or ... this nationwide permit is permit
enough for you. But because they're nationwide, they really need
scrutiny at the regional level, and Alaska's coastal program is so
well networked with the agencies and with local communities that
Alaska, the Corps in Alaska, was the first region to get all the
local conditions decided on for those nationwide permits, for their
approval to move forward. So there are ways -- well, this might
not be exactly the issue you're talking about. (Indisc. -- papers
on microphone) the importance of that local/state/federal
relationship (indisc.)."
Number 0908
REPRESENTATIVE GREEN said, "This was where I was heading for in
this question, was that we seem to have a dual ability. We can use
your agency as a coordinating agency or, in some cases, there has
been ... a lead agency. I'm thinking of, say, the mining
permitting through the Division of Mines. And if that is effective
for the mining community, might there be lead agencies established
that are already existing agencies, and ... not make it necessary
to have a coordinating agency such as yours? Could they do this on
their own and thereby reduce the cost of government?"
Number 0930
MS. MAYER said it was a big question and that Fort Knox was an
excellent example of a lead agency concept at work. She stated,
"In that case, DNR brought the agencies together and did the review
of that mine project in the Interior and took it to closure and did
an excellent job. I applaud the department in that work.
Representative Therriault had mentioned in his testimony that it
seemed to work there, so we don't need somebody else doing it.
There is a very different, important distinction between the work
DNR did at Fort Knox and the work DGC does, and that is, DGC has no
program receipts. We don't have program receipt authority."
MS. MAYER said in the case of Fort Knox and other mining projects,
the company actually selected a lead, negotiated for services and
also provided funding to that agency to then fund the participating
players. She emphasized the importance of looking at a project as
a whole and then deciding what permits were required. "That's
where the coordination is definitely necessary," she said. "If you
do that and you're paying the participants to coordinate, the
discretion the agencies have to make that work, and there is
discretion, the motivation they have to exercise their discretion
to make that work is definitely enhanced by ... the financial
arrangements. ... And I think the fact that basically the company
is buying the service. If we didn't have DGC, what it means is
those projects that are more marginal financially, of which there
are numerous, I mean, we do 400 a year. Those are not 400 Fort
Knoxes. But they are 400 Alaskan projects where developers are
trying to get permits from more than one [agency] ..., and I think
... what we're talking about there is setting up a system, if you
really base it on `you buy your coordination,' I don't know, on
these smaller projects, if it would make them marginal and what
kind of effect that would have on the smaller economic development
activities."
Number 1080
MS. MAYER continued, "The question to me on lead, I think that
coordination is basically an art. I mean, it's experience, it's
working with people, ... and the training and the right type of
person, and then the knowledge, and knowing the language, being
able to speak the language is all a part of the success. And
there's nothing inherent in DNR or inherent in DGC ... that makes
it better at doing that. I think the real question is an
operational one, which is: Is it most cost-efficient to have there
be sort of squadrons of these people within the departments, and
then try to route players to the right parties? And then you have
the staff people within the agencies trying to figure out who's the
lead on the 400 projects. If that truly was more cost-efficient
than just standardizing it, have there truly be facilitation-
skills-central that can be utilized, then, you know, I support it.
I support, you know, efficient government, and ... I tried to make
a career out of it, I guess. But I think that's the policy
question."
Number 1173
REPRESENTATIVE REGGIE JOULE noted the process involved people from
local areas brought together with state and federal officials as
well as with companies seeking to develop resources in those areas.
He asked how much money the result of this partnership had brought
to the state by getting everyone to the table at the same time so
things could be accomplished. He commented, "Those numbers must be
pretty big, I would think." Representative Joule elaborated,
citing examples such as Prudhoe Bay and the Red Dog Mine. He asked
whether Ms. Mayer had a feel for the amount of litigation that had
been avoided by having all the players at the table.
MS. MAYER replied, "The main feel I have for that is that they're
great questions." She suggested the Department of Commerce and
Economic Development might have relevant statistics. She indicated
project reviews and good records existed on the files the DGC did
have. However, focus had not been on "keeping track of things
beyond just getting the job done."
Number 1323
REPRESENTATIVE JOULE said having all the players at the table not
only saved the state money in terms of litigation, but probably
allowed some of the development that had occurred as well. He
asked Ms. Mayer, "Would the repeal of this program have any impact
on the potential development of ANWR, the gas line, or NPR?"
MS. MAYER said, "I've thought a lot about the effect of this
program, and ... I didn't run to that project, in thinking about
it. I think ... as ANWR becomes open and development occurs in
ANWR, as federal lands, the effects that that development would
have and ... how it would look is something ... that the North
Slope Borough would have a greater role in shaping as a result of
this program."
Number 1433
MARTY RUTHERFORD, Deputy Commissioner, Department of Natural
Resources, and Alternate Member, Alaska Coastal Policy Council,
testified via teleconference in Anchorage in response to
Representative Joule. She stated, "I think part of the answer is
the comfort level of the ... North Slope Borough and the
communities in the borough might not be as high if the program were
not in place, because this program does allow the communities and
the (indisc.) governments to come in and tell federal and state
agencies how they would like activities to occur. So if you remove
that opportunity from them, their comfort level might fall. So I
think the potential is that there could be a negative impact to the
... potential development of ANWR [and] N-PRA."
CO-CHAIRMAN OGAN called upon Harry Noah and requested that he
specify why he had been asked to testify.
Number 1541
HARRY NOAH, former Commissioner of the Department of Natural
Resources, came forward to testify, saying he was speaking as a
citizen. He commended the chairman and the sponsor for taking on
this issue. He said, "I think one of the things that's happened
over the last 25 years is we've just added environmental regulation
on top of environmental regulation. And once they're set in place,
it's very difficult to unwrap a system. And also, you have so many
constituents and vested interests, it really is hard to kind of
pull a program apart and take a look at it, particularly one that's
this complicated, and it is really a fairly complicated thing."
MR. NOAH explained he would draw three things and ask members to
answer in their own minds a question he would pose. He drew a box
with two halves. One half was the CZM program. One half was the
coordination function. He said, "The CZM program needs the
coordination function. The coordination function does not need the
CZM program." He emphasized they were separate entities in this
permitting process.
MR. NOAH continued to draw and said, "The second of these boxes is
that if you draw this permit process and you look at the whole
state, then you have this level of permitting. You have solid
waste permits, you have federal and a myriad of permits across the
state. You must understand for -- within this coastal zone, this
program, this voluntary federal program ... that we've got money
for, has added a layer to that. It's simply added a layer of
permitting, and although it's not called a permit anymore, it is
essentially a permit that has to be obtained. And finally, if ...
your district was both in the coastal zone and outside the coastal
zone, and let's say this is that area, and the coastal zone was 50
miles wide, okay? ... And someone came to you and they were inside
that 50 miles, and they said, `Why do I have to do this extra level
of permitting but someone 51 miles away doesn't?'"
MR. NOAH said he would comment first on the coastal zone management
and then on the coordination function. He explained, "When this
was set up, and I think in a lot of people's minds the Coastal Zone
Management program is an environmental protection program, and I
think when it was initially put together or conceived after the
Santa Barbara oil spill, there was a gap in the ability to regulate
coastal areas. And I think when you look at the United States as
a whole, there's a major difference between Chesapeake Bay and the
coast of California, and the development pressures that one has in
those areas versus Alaska. It's ... a degree of development
pressure."
Number 1761
MR. NOAH said since that time, environmental regulations had
evolved dramatically, to the point where the burden of the
permitting task on both the applicant and the system was quite
extraordinary. Mr. Noah said the legislature was not appropriating
enough money to meet all the statutes currently on the books. He
suggested the end result of not being able to manage the permit
process well would be the slowing of future development.
MR. NOAH stated, "In every case, the environmental protection for
those coastal areas comes from existing statute other than the
Coastal Zone Management program. It's either water quality, it's
air quality, it's wetlands protection. And in each of those, if
they're not already controlled by the state, then the state has a
very clear certification program, that -- that they have a clear
voice in how those permits are issued. So again, to be clear,
within this coastal zone, you've simply added another layer. And
it is a planning layer that's associated with that."
MR. NOAH said, "The next point that's made is ... that government,
city, local government, has a much greater say. I think
collectively they do. But what we also have created [is] a system
where there are whole groups of people that are not accountable
anymore. They're not accountable like you are. If you make a
really dumb decision, you'll find yourself unelected. That does
not necessarily occur in this system that we have in front of us
right now. It's a very amorphous system. And because of that,
that we have created a system that's growing on us, that does not
have the same elected accountability that you would normally have
in land use decisions, and the same land use law under Title 29.
So again, as you're looking at this bill, I would hope that you
would consider that piece."
Number 1898
MR. NOAH said third, money was the central question here. Although
he had not looked at the fiscal notes, through his experience he
knew tremendous effort was required within the agencies. The cost
was hidden, not clearly definable in man-hours per fiscal year.
The energy spent on this particular issue cumulatively was very
large, he noted.
MR. NOAH pointed out, "Every time somebody has to make application
in this system, there's a cost to them." He continued, "Finally,
the federal money is certainly a key and not to be thrown away
lightly here. But in the mining industry, if you've got $20 ore,
and it costs you $25 to get out of the ground, you don't spend a
lot of time mining it. And I wonder if that's the system that
we've created here that's kind of evolving on us at this point."
Number 2008
MR. NOAH believed the coordination function was very important in
the state. He cautioned not to lose that. "But I think that ...
in looking at this bill, you have to look at sort of both sides of
this coin in terms of permitting," he said. "The system is
starting to bog down. The legislatures from the past and
administrations, including the one I was in, keep adding statutes.
At the same time, you're taking away money. There's a problem
here." Mr. Noah indicated this bogging down was obvious within
industry and its ability to move permits through the system. He
believed the reason Fort Knox was successful in permitting was the
ability for the agencies to deal with major projects in the state.
Number 2088
MR. NOAH drew another box indicating a few major projects and
numerous small-to-medium-size projects. He said the bureaucracy
was prepared to deal with the latter. He suggested the big
projects disrupted the system. They were both interesting and
expensive. Mr. Noah said, "And for the most part, the state
doesn't really have ... the technical capabilities to deal with
these major mines, to deal with the major oil projects. And if
you're just talking about straight environmental protection, the
state doesn't have that technical capability right now, or it's so
... used up, because of the requirements that are currently on
them, that that's where the system's starting to bog down."
MR. NOAH suggested the DGC truly played an important coordination
role in small projects. The "little guy" could not afford to deal
with the myriad of regulations or to hire lawyers, for example. He
said, "And they do a heck of a good job in making that system work.
But when it comes to the major projects and how those things are
dealt with, that's the economic engine that's going to drive the
state. The system isn't working very well. And when you talk
about lead agencies and how you organize that, I think you're
really referring to the large projects, because these little ones,
you'll -- if you break the system apart too much, you'll ...
explode the little guys. But if you don't deal with the system,
you won't deal with the big guys that are going to basically drive
the economy of the state."
Number 2268
REPRESENTATIVE GREEN concurred that the morass of hurdles seemed to
stagnate many projects and perhaps scare off applicants. He asked
whether part of the dilemma was not self-induced, coming from
federal regulations and court decisions that became, in effect,
law. He asked Mr. Noah whether, especially in his experience as
former commissioner of DNR, a stand needed to be taken against
things "imposed against our will."
CO-CHAIRMAN OGAN asked Mr. Noah to state what his former position
was and indicate his frame of reference for expertise.
Number 2369
MR. NOAH replied he had been commissioner of DNR under Governor
Hickel for 18 months. He had also worked on permitting for many of
the major mining projects in Alaska, including Greens Creek, Red
Dog, Fort Knox and the A-J Mine. "I did the permitting for the
Trans-Alaska Gas System, those kinds of things," he added.
[Beginning of Mr. Noah's response to Representative Green's
questions cut off by tape change.]
TAPE 97-12, SIDE A
Number 0006
MR. NOAH suggested separating out the coordination role. He said
as a citizen he asked, "Why are we taking on another set of
regulations and a bureaucracy? What's the purpose of that, that's
a voluntary process?"
Number 0081
REPRESENTATIVE THERRIAULT advised that Mr. Noah was testifying at
his request. He had worked with the former commissioner through
chairing the DNR budget subcommittee. It had been portrayed to him
that Mr. Noah had been brought on because he knew regulations and
was a consensus-builder. Representative Therriault's staff had
heard about a presentation by Mr. Noah addressing "exactly what
were we doing and why were we doing it and how it impacted the
system." He had encouraged Mr. Noah to testify, bringing his
expertise with not only how the system works but also how expensive
it is in the department.
REPRESENTATIVE THERRIAULT referred to one of Mr. Noah's drawings.
He indicated part of a box that he said represented state agency
permits required by statute. Referring to the $44-to-45-million
appropriation to the DNR, Representative Therriault asked: "What
is eating up all the money so that they can't do anything? At the
end of .. the day, nothing comes out of the box."
Number 0284
CO-CHAIRMAN HUDSON referred to a chart drawn earlier by Mr. Noah
and noted that Mr. Noah had worked with big companies. Co-Chairman
Hudson indicated he had a question for both Mr. Noah and Ms. Mayer.
Acknowledging earlier testimony that the DGC worked well to
coordinate smaller projects, Co-Chairman Hudson cited examples. He
then asked what percentage of the total work involved big companies
or projects such as the Kensington or Greens Creek mines.
Number 0372
MS. MAYER responded, "I would say percentage-wise, it's pretty
small." She offered to do some quick math and cited examples
including Northstar and Kensington.
CO-CHAIRMAN HUDSON said, "Those are your big ones, now."
MS. MAYER replied, "Right."
CO-CHAIRMAN HUDSON said, "So the large ones, then, are the smaller
portion of your total coordinated effort."
MS. MAYER concurred and stated, "But ... the way we look at it, and
the way we're organized, is we have two regional offices, three
people each, and they deal volumes. So we've got people set up to
just deal the small projects. The large ones are time-consuming.
So then we have three other people who just specialize in the large
projects. So they're all equally busy, but obviously the large
projects are taking up more time."
Number 0443
CO-CHAIRMAN HUDSON referred to the costs involved in operating
within the coastal zone or developing a major project such as the
Kensington mine. "The cost that we don't see, because it's not in
our budget, is the cost to the private sector," he said. Co-
Chairman Hudson asked Mr. Noah to provide a "broad-based relevancy-
cost profile" at some point in time. Suggesting Mr. Noah use the
Kensington mine or another familiar project as an example, he asked
for some idea of how much it cost industry to work its way through
the regulations.
Number 0516
MR. NOAH replied, "I'll just put direct cost to the company, that
they would show on their books internally. ... But depending on the
scale of the project, you're looking at a cost of ... $3 million to
$10 million. The cost of just permitting the gas line, for
example, even though everyone says it's permitted, to go to the
next step and get all the permits you need to construct it, that's
probably a $150-million-dollar effort. ... And I think that's the
thing that's different. The level of scrutiny is tremendous. The
level of water quality work, the interpretation of that, is
tremendous. And that's where the system kind of breaks up."
MR. NOAH suggested, "You need to break off the little guys and try
to deal with them on general funds. Maximize your general funds in
the area that most needs it. The big guys, I got to tell you, and
I'll get rocks from the other side on this, they should pay for
that, because it's an extraordinary expense to everyone. But the
system right now isn't set up properly for that money to come in.
Each agency is collecting money from these companies differently.
It's not a good system right now. And I think if you could
concentrate in this, to set up a system, or maintain your system
that exists for the small applicants, ... what DGC does is very
good. ... Don't blow it up. You'd hurt the state."
MR. NOAH said, "But you need to look at the larger role of these
major projects. And the applicants should fund that level of
scrutiny because when a company is spending $10 million, there's
probably $2.5 million in review costs for the state to take on that
same project. ... I think within industry, and I may be wrong but
the people that I know, the concept of putting forth those dollars
is not out of the question at all. ... It's a way to maximize your
general fund dollars."
Number 0670
CO-CHAIRMAN HUDSON commented that Echo Bay, by its own accounts,
put more than $100 million over ten years into trying to open and
permit the old A-J Mine. He wondered how much money the people put
into that. "So it's not just an investment by the company in
reaching a failed point, but it's also an investment on our part,"
he said. "And that's way I think this issue is very important,
that we fully understand it and find out what, if anything, can we
do, not only to save industry money in reaching either a point of
go or no-go, but also those of us right here in this town and in
this state."
Number 0740
CO-CHAIRMAN OGAN said to Ms. Mayer, "Now, you said that ... a very
small percentage was large projects in number, but I gathered that
about half the resources are spent on large projects and about half
on handling the smaller ones. Is that correct?" He asked Ms.
Mayer to respond, roughly, in man-hours.
MS. MAYER said about one-third, or maybe a little less, was spent
on large projects.
Number 0786
REPRESENTATIVE THERRIAULT referred to the first box drawn by Mr.
Noah and the indication that coastal zone management required the
second half, the coordination. "But the coordination doesn't
necessarily require CZM," Representative Therriault pointed out.
"And so when he makes his comment that the coordination, that
function, that portion of what DGC does, is important, then I'm not
so sure, and I just wanted to maybe get a response from Mr. Noah of
whether he feels that perhaps could be adequately provided through
a lead-agency mechanism, or does there need to be ... some entity
over the agencies ... that would look out for that coordination?"
Number 0832
MR. NOAH cautioned, "I think you have to be very careful to blow up
the system right now. You've taxed it so much - you, it's the
collective `you' - you've taxed the system so much by this more-
statute-less-money issue that you're going to have to go into this
carefully and think out ... how you're going to permit in this
state for the next 15 years. You've got an old system now. We had
a lot of money when it started. It's evolved past that. And the
problems have evolved past that. You need to look at this real
hard in how you're going to accomplish it."
MR. NOAH continued, "I think the lead agency has some merit, but I
don't think you want DNR, for example, or DEC, policing itself
necessarily. DGC has a role that's neutral. It's very useful.
But really, on those small projects, I think, is the main area
we're doing that. ... This is very complicated, and it's really
important getting into it. But please handle this carefully. ...
It's going to happen anyway, because the nature of -- this change
is coming. Be careful in how you set that up, I think, because it
will have a long-term impact."
Number 0947
SCOTT NOVAK, former public co-chair of the Coastal Policy Council,
testified via teleconference from Cordova. He emphasized that
under HB 28, no one was abandoning the concepts of coastal zone
management of finding a balance and promoting the wise use of
coastal resources. "But it's simply putting them back into other
existing authorities, which I believe would be more efficient than
the current coastal zone program," he stated.
MR. NOVAK agreed coastal zone management and the DGC were unique
and separate functions. "By eliminating the coastal zone program,
you are not ... getting rid of the coordination of programs," he
said. "DGC can still certainly remain in business." He referred
to concerns about the program's cost and suggested there never was
and never may be a full accounting of its cost-effectiveness. "Mr.
Noah brought up the cost to the applicant," he said. "Another
point is, what is the true cost to the local communities who are
participating in this program?" [Some comments indisc. due to poor
sound quality.]
MR. NOVAK suggested the cost of appeals must also be considered.
"For example, the City of Cordova recently was involved as a
petitioner this past year over a state decision which challenged
the ACMP program," he said. "The City of Cordova spent $50,000 in
legal fees trying to carry forward this petition. They ultimately
dropped out. The City of Kodiak and the City of Whittier were also
petitioners and probably spent similar funds. What the City of
Cordova might have received in these small grants to operate its
program, and considering the cost of the city just trying to
participate in one petition process, certainly didn't (indisc.) for
the City of Cordova."
Number 1152
MR. NOVAK said the other cost factor was enforcement of policies
and the decision-making process that occurred with the program. He
stated, "One of the complaints to come out of the assessment that
has been done here for the past two years is that essentially there
was very little or no enforcement of these permits and these
stipulations that are put on there, because no one has the funds to
actually go out there and see if the permits and stipulations are
actually being complied with."
MR. NOVAK stated, "Another potential cost factor, and it was
brought up earlier, are the potential for these unfunded federal
mandates, the nonpoint-sort-of-pollution program that's mentioned
(indisc.) something that the feds would like to see the state
adopt. I believe there is a time table there. Over the next
several years, the feds are expecting in this state to slowly start
implementing some of the things the feds would like to see done
through a nonpoint program. What is the cost of implementing these
unfunded federal mandates?"
MR. NOVAK provided an example of nonpoint pollution in coastal
communities. Most boat harbors operated grid systems for letting
boats go dry in order to work on the hulls. Instead, vessels could
be hauled out of the water and put into containment areas where the
hulls could be scraped, and where contaminants could be handled as
toxic waste. Mr. Novak asked, "What are the potential costs to
Alaska and Alaska communities if, by being involved in a coastal
program and accepting some funding from the feds, that we are then
obligated to comply with some of these unfunded federal mandates?
All that needs to be considered in determining the cost-
effectiveness of the program."
MR. NOVAK referred to Ms. Mayer's discussion of the benefits of
Alaska staying in a coastal program. He countered, "Those benefits
are not unique. ... All of those things can be done through those
other existing authorities. We don't necessarily need the ACMP for
local governments to be able to participate in state decisions or
for local governments to be able to develop standards within their
municipal boundaries to guide development. Those things can be
done through the Title 29 and Title 46 authorities."
MR. NOVAK continued, "As far as shaping federal activities, I think
it's important to note that the relationship between the state and
the feds is primarily where the state is given a seat at the table.
Coastal zone management does not give state government any veto
power over a federal activity." He stated, "And as far as some of
the things this assessment has brought out, that the coastal
program has gone through for the past two years, I think it was a
very valid point and it shows why I believe it's not working. The
participants of the coastal program (indisc.) one of the strongest
points of having it is this networking approach to addressing
everybody's concerns and getting the permits issued. But
networking is a way of consensus-building, of sitting everybody
down at the table and trying to address everyone's concerns."
MR. NOVAK said different participants wanted "due deference" or
recognition as experts in certain areas. He stated, "For example,
a local community wants to be recognized as the expert or given due
deference in interpreting the meaning of the enforceable policies
that (indisc.) the district plan. The state agencies want due
deference. So they want to be recognized as the experts in
interpreting the meaning of state regulations. (Indisc.)."
MR. NOVAK continued, "Now, to me there's a conflict there, that if
you're going in with the intent to build a consensus through this
networking program, which is kind of having a mutual interpretation
of what these various policies and regulations mean, but on the
right hand you're talking about giving the various participants a
due deference or recognition as experts to be the sole interpreter
of their policy, that those two aren't consistent. I mean, are you
networking? Or are you granting different participants some kind
of exclusive authority? I think through the ACMP you're trying to
do both. And this causes a great sense of confusion."
Number 1467
MR. NOVAK recalled that sometime during the past year, Ms. Mayer
had commented that "there was some (indisc.) in the Lower 48. I
believe, to the best of my knowledge, they were from the state of
Colorado. And they were reviewing Alaska's methodology for
(indisc.) projects. They offered the comment that Alaska gives as
much review to very small projects as they would give only to the
very large projects. And I think this, again, expresses why
there's so much confusion or frustration in the program is that
we're putting very small, very simple projects under the
microscope. And a good example was mentioned earlier, was this
appeals process for this DNR cabin permit in the Bering Straits
Region. Four or five years in appeals and litigation, and to the
best of my knowledge, it's still not solved, all because of a
question as to whether it was consistent with someone's coastal
plan. That is not being efficient, when everybody is spending that
much time and effort reviewing and reviewing and reviewing whether
someone should have a cabin in the woods."
MR. NOVAK said, "Commissioner Shively, who's the current
commissioner of DNR, if you could get him off privately, would
probably tell you he's not a great fan of the coastal zone program.
At least he's expressed that through the program in the past year
or two. And his concern is, how many times do we have to remake a
decision? Hopefully, if we have good people in state government,
which I believe we do, you should be able to make your decisions
once, and that should stand. Occasionally, there's going to be a
need to go back and take a review. But whether the emphasis of the
coastal zone program is this petition process, granting this
tremendous level of due process to public members and others, will
we keep going back and relooking and relooking and relooking and
making these decisions over and over and over again?"
Number 1586
MR. NOVAK said, "I read (indisc.) recently - it actually was in
context with a review of the state education system - where a
principal of an Anchorage school said a possible definition of
insanity is doing the same thing over and over again, but expecting
different results. And I think this is part of what's going on in
the coastal zone program is we keep doing the same thing over and
over again, expecting each time we redo it to get some kind of a
different result."
Number 1680
MR. NOVAK stated, "Coastal programs have been in this assessment
now for almost two years. But this is the second assessment that
it's been through. The Hickel Administration had started its own
assessment in '94. From my perspective, I've been involved
assessing the coastal program for over three years. On one hand,
we've identified a lot of areas where the program can be improved
to be more efficient. On the other hand, when it gets down to the
final wire of actually making a decision (indisc.) couple of fixes,
it would make the program ... more efficient. No one is willing to
make that move. And again, I think this is where the program's
become obsessed in this attempt to try to please everyone. I mean
it's just not working. Because we have ... other existing
authorities in Title 29 or Title 46 and the state constitution, we
can do all the things that coastal zone management is trying to do
by giving these responsibilities exclusively back to either the
state agencies or the local governments, (indisc.) each unit, each
entity do their job and (indisc.) stop trying to intermingle and
bring all these people together. If they're left alone to do their
own job and everyone learns to respect each others' (indisc.) move
much more efficiently."
REPRESENTATIVE THERRIAULT asked, "What is your overall length of
time of involvement in the process?"
MR. NOVAK replied, "Just a little over four years."
CO-CHAIRMAN OGAN noted that the sound quality was poor and asked
Mr. Novak to restate his position.
Number 1729
MR. NOVAK replied, "I was a member of the Coastal Policy Council,
and on the council, I was elected from that council to be the
public co-chair."
REPRESENTATIVE THERRIAULT explained that after the introduction of
HB 28, Mr. Novak had contacted Representative Therriault's office
to express interest in it. Because of Mr. Novak's past involvement
on the Coastal Policy Council going through the assessment,
Representative Therriault believed his testimony would be useful.
Number 1769
REPRESENTATIVE GREEN commented that in 1993, when Mr. Noah was
commissioner, the Alaska Superior Court had stayed an oil and gas
lease sale. The applicants included Greenpeace, Trustees for
Alaska and the Center for the Environment. Representative Green
said, reading in part, "The court wrote that the two methods by
which the commissioner may find consistency are either finding that
all specific environmental protections have been met ... or that if
there is to be a conflicting issue, that the finding and the
provisions of 6 AAC 80.130(d), which requires a finding of no
feasible, prudent alternative to meet the public need for the
proposed use and a finding that all feasible and prudent steps to
maximize conformance with the standards will be taken."
REPRESENTATIVE GREEN stated, "Now that's, to me, the word `all' in
there, [it] seems to me that should be changed to `litigant
attorney retirement fund.' Because any time you do that in
statute, and it's in our state statute as well, as the court order,
it seems to me that there is just almost no way you can get through
that hurdle without somebody bringing an issue." He asked Mr. Noah
and Ms. Mayer whether there was a way to keep the coordinator and
do away with the coastal zone management program.
Number 1868
CO-CHAIRMAN OGAN asked whether Representative Green was referring
to material in the committee packet.
REPRESENTATIVE GREEN said he was referring to a court case from
three years ago.
Number 1895
MR. NOAH believed it was an important point. He said one problem
with the Coastal Zone Management program relating to litigation on
lease sales, et cetera, was that the standards were amorphous and
unclear. Although clear in a planning sense, for a city planner,
for example, they were not clear relating to "big industrial-type
of things." Mr. Noah stated, "They invite litigation. And so you
have two options to deal with that. You make it much more
specific, which will be a very difficult thing to do. You've dealt
with water quality, for example, and ... is 36 parts per billion
okay of arsenic or is 50 parts per billion of arsenic okay? ... Do
you want to sit here and deal with that? I don't think so."
MR. NOAH said, "If you don't have to do that, you don't open
yourself to the litigation. ... By having this program - and I'm
just making friends everywhere here, I'm sure - by having this
program, ... you've opened up another opportunity for litigation,
another avenue to get at ... these different projects, you see.
You have the opportunity under an NPDS, or ... waste water
discharge (indisc.). You have an opportunity under the air
quality. You have an opportunity under NEPA, an EIS. But this
program has added another layer, another opportunity to bring
litigation and deal with that point."
Number 1960
MS. MAYER asked Representative Green to cite the case he was
discussing.
REPRESENTATIVE GREEN said, "Okay, it's Superior Court case number
3KN-93-1174 CI."
MS. MAYER asked what the legal reference was in the body of the
document.
REPRESENTATIVE GREEN indicated he was just reading an excerpt and
did not have that information.
MS. MAYER asked Mr. Noah if it was Lease Sale 78.
MR. NOAH said it was.
REPRESENTATIVE GREEN concurred.
Number 1995
MS. MAYER said, "A couple things on that ruling, and one is that
... the legislature has changed the standard of review since that
activity even occurred. So there have been substantive changes in
the law from '94, I believe the changes were made, that would
affect the outcome of that court case. But the court case was
ruled before -- or was ruled on a project that occurred before the
law was changed. So part of the outcome is moot."
REPRESENTATIVE GREEN asked if she was referring to Senate Bill 308.
MS. MAYER replied, "Right. And ... the other point I was going to
make on that, having read the judge's ruling that recently did come
out, and being kind of alarmed by the broadness by which the judge
did rule, and immediately talking to some DNR attorneys about
taking action to rebut or review or whatever the step is for court,
have a reconsideration of it, I also found out that the record for
that lease sale ... contained very little information about coastal
management, which made it difficult for them to make a case at all.
And just simple changes in their procedures and documentation have
accounted for improvements which in ... the current lease sales
wouldn't have resulted in a ruling as strenuous as that one."
MS. MAYER continued, "But there are, from that case, a couple of
ideas we've been talking about if this does move and there are reg
changes. Of course ... I don't support repeal of the program. I
would never tell anyone that the program is perfect. Through the
assessment that Mr. Novak talked about, through some of the
decisions where you can see where the courts are headed in their
thinking, there are more surgical things that can be done to
straighten out some of the thinking that the judges seem to be
relying on or -- or going down a course that is fairly extreme.
... And some of the language you quoted, I think, reflects that
extremeness."
Number 2094
REPRESENTATIVE GREEN asked, "So you feel that we're pretty well
down the road with [SB] 308, that we could now live with ...
scrutiny such as this?"
MS. MAYER responded, "I think there have been improvements since
Lease Sale 78 ... that would have avoided this situation."
Number 2105
REPRESENTATIVE BILL WILLIAMS asked Ms. Mayer to express her
thoughts on Mr. Noah's discussion of major projects versus smaller
projects. He understood Mr. Noah to say major projects should be
out on their own, with larger companies themselves working on it.
He stated, "And I thought I heard you say earlier in your
discussion ... that they generally take care of themselves anyway.
And -- and making sure that we keep hold of the smaller projects.
Right now, the City of Ketchikan, the Gateway Borough, is
supportive of this organization right now. But we handle smaller
projects." Representative Williams asked Ms. Mayer, "Would you
agree with Mr. Noah on this? And what kind of suggested (indisc. -
- papers shuffling) would you see in this area?"
Number 2162
MS. MAYER responded, "The notion of one-size-fits-all in terms of
review is -- I don't think is accurate." She said it was incorrect
to think one system could handle world-class developments as well
as routine projects. She indicated the current program had built-
in flexibility where small, routine projects went through minimal,
if any, review. "And on the upper end, there is some discretion to
bend the system to accommodate what goes on in the really large
project," Ms. Mayer stated. "I don't think, even with the
accommodation we have currently in place, that there is the most
efficient mechanisms for the very large projects. And part of the
streamlining initiative that the Administration is taking on is
looking at: How do we look at large projects and what are the
distinctions that we should be pointing to? So I think Mr. Noah is
correct in recognizing they're a different breed of cat."
MS. MAYER said she and Mr. Noah had discussed what to do about it
many times. She stated, "So I think it's just: How do you craft
the solution? And to just assume, well, you chop those off and
then they're entirely different, ... well, maybe that will be true
and maybe more analysis of the problem will show that. ... I'm not
there yet, that they're so different. They still have a lot of
permits. They have various stages of development to be considered.
The phasing, 308, took care of some of that. I think there's a
little more that needs to be done. It was very well-designed for
oil and gas. It has some gaps when you try to apply it to some
other large project development, because their needs weren't quite
in the maker's eye when that was designed. So there's some ways to
tweak it. And I think there can be some very healthy discussions
about how most efficiently to handle it. I agree that they would
be different. I don't necessarily think that that just implies
somebody else does it. But again, if it makes sense that somebody
else does it, I think that would be ...."
Number 2272
REPRESENTATIVE WILLIAMS said, "Someone else that does it would be
DNR, DEC, or whoever else, and either of those agencies would --
are basically doing it today in the major projects. And maybe the
coastal zone management ... isn't really needed by the cooperation
portion of it. ... Maybe we could form a bill around this area, to
have the state agencies, DNR, DEC and whoever else we have to deal
with in these to -- on major projects, and use the cooperation
portion of this act." Representative Williams said, "As I see us
needing this organization right now, at least for the time being,
but, and I think Mr. Noah alluded to that also, at least to be
careful. If I'm wrong, I'd sure like to hear (indisc.)."
Number 2324
MR. NOAH replied, "I don't think you're wrong at all. I think that
the question is really what Representative Therriault stated: How
do you use your limited funds to the greatest extent that you can?
... And if you set up a system where you break off the major
projects, where they can be dealt with differently and funded
differently, then that would allow you to focus your money on DGC
and that type of thing, you see. But be clear, you don't need the
coastal zone management program to do that. You've just added
another layer there that -- they're separate things, you see.
They're really even separate legislation; they just happen to be
together in this office. Right?"
Number 2361
MS. MAYER said, "Wrong." She added, "I think it would be useful
just to take a minute to think about why we have the system we have
right now. And that is, in '82 everything was being permitted
separately. Everything was a separate track, a separate permit.
... [W]hat was requested, and where the pressure was, instead of
having these developers running around chasing permits, agency
after agency, they wanted somebody handling it on a project basis,
so you could pull the agencies together and they would be on a
similar schedule and be processing them, so they were looking at
the same project and the permits actually matched, to make that
project work. And when that issue came up, at that time the
coastal program was very cognizant of the problem and understood it
and took leadership in solving it with the state agencies."
MS. MAYER continued, "And what we designed, then, was a system
where the state agencies would come together. There was a platform
where permits were looked at commonly. Problems were solved. But
one of the premises was they would continue to deal with their
separate processing, that what they already did was not basically
game for the system. And so the coastal program, in crafting the
solution to bring parties together on a project basis, it turned
out the authority got housed in the coastal program."
MS. MAYER continued, "Harry [Noah] is right. What we need is a
coordination system. And coastal management needs it. So when the
problem arose, coastal management solved it. Whatever we do with
large projects, coastal management will still need to interface
with that. And the question becomes, you can have a coastal
program and you can have a coordination system, and they have to
have a seamless interface for program implementation. The real
question is: How do you most efficiently coordinate projects?
That is the challenge. The Administration's working on it. Mr.
Noah gives talks about it and is very expert in the question
because of his experience. The legislature is looking at it. It's
a very good question. And I think it has to be answered not
necessarily on the merits of coastal management but on the issue
of: How do you most efficiently accomplish that task?"
[Short section on DGC missing because of tape change.]
TAPE 97-12, SIDE B
Number 0006
MS. MAYER concluded, "This whole discussion is a natural
progression."
Number 0023
REPRESENTATIVE THERRIAULT said, "Mr. Noah, you've talked about
breaking the large projects out. But in your mind, there would
still be a problem, though, if they were trying to satisfy the very
fuzzy requirements of the CZM program. Is that correct?"
Number 0032
MR. NOAH replied, "Again, these are two separate questions, as far
as I'm concerned. The Coastal Zone Management program is, again,
is another layer. You all have to decide whether that layer is
required. ... And Diane [Mayer] is correct that the 308 bill
changed the law somewhat in terms of phasing and dealt with that
specific issue on Lease Sale 78, but it hasn't taken away the whole
opportunity for litigation. It hasn't changed that. And so I
think that's the policy question that you have to answer here, is
if someone comes to you - the question I asked at the beginning -
and your district is half in and half out of the coastal zone, and
someone in the coastal zone, two miles away from this other
individual, has to go through one program, and two miles away,
somebody doesn't. Why is that? ... How do you, as a
representative, explain that to the folks?"
Number 0100
MR. NOVAK spoke again via teleconference from Cordova. He said,
"On the matter of the use of state concern, which I believe is the
same thing as breaking out large projects, probably along with
petitions, one of the most contentious things that (indisc.) come
up with the assessment, attempting to define what is a use of state
concern or when is there a project, that because of meeting some
set of criteria, that the state government moves in and says,
`We're going to do this; we're going to review it and permit it,'
and the local communities are going to have a lesser role in that
because it's a matter of state concern.
"There's been a complete inability of the Coastal Policy Council
and the other participants to address that. ... But addressing that
is simply making some decisions. You simply have to draw that line
in the sand and say when a project gets to some level of criteria,
the state government is ... taking it back completely. (Indisc.)
step on somebody's toes, but that has to be done. And until
somebody defines the use of state concern, we're going to continue
to have all this fighting back and forth about how a project should
be permitted.
"And I don't believe, from my four years of involvement in it, that
the Coastal Policy Council, or this larger coastal zone family of
all the people who participate in it, are willing to just make some
of those (indisc.) decisions (indisc.), deciding things like the
use of state concern, one of the reasons why I think, all things
considered, and in the interest (indisc.) of everybody, it's time
for the state government (indisc.) the program just isn't working
well enough to keep it around the way it is."
Number 0190
MR. NOVAK referred to a question about enforcement of programs. He
said he would read from the Cordova coastal plan. He believed it
was a good example of how almost any coastal plan would read and of
why it was so confusing. He explained, "This is in a coastal
policy dealing with development effects of sea bird colonies and
marine mammal haul-outs. And the (indisc.) policy says that
development activities with high levels of acoustical or visual
disturbance shall be designed and operated to minimize significant
adverse impacts on sea bird colonies and sea lion and harbor seal
haul-outs or rookeries. That's a pretty vague statement. What is
a high level of acoustical or visual disturbance? And what is a
significant adverse impact?
"You're setting yourself up for one person who is in a position of
making a permitting decision to look at this statement and apply a
fairly subjective interpretation as to what is or is not a high
level of acoustical or visual disturbance and making a call as to
whether anything special has to be done. Then there's someone else
coming and saying, `I disagree with how this person interpreted the
plan and therefore I'm going to file a petition or eventually I'm
going to take you to court because I think ... the level of
acoustical and visual disturbance is different or is significant.
"These kind of vague statements get you nowhere. And the fact is
impacts on sea birds or marine mammals is something that's governed
by the U.S. (indisc. -- coughing) Wildlife. Why is a local
community being given an opportunity to write, potentially,
regulations on what is good or bad for marine mammals? It's
already done. Why do it again? And why do it in such a way that
it's so vague that all you do is open everything up to a lawsuit?"
Number 0291
CO-CHAIRMAN OGAN advised that he planned additional hearings on HB
28. He noted that the meeting Thursday, February 20, would address
other bills.
ADJOURNMENT
CO-CHAIRMAN OGAN adjourned the House Resources Standing Committee
meeting at 3:25 p.m.
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